Proponents of proportionality argue that it is the best approach to determining whether or not limits on rights are justified and the best means of protecting constitutional rights, and a good deal of work has gone into developing the various steps in the proportionality analysis. For all of the pretense, however, proportionality suffers from the same basic problem as all other approaches to judicial review: it cannot provide answers that cannot reasonably be denied. Judicial review is problematic no matter what approach to rights analysis is adopted and proportionality analysis gives rise to a unique range of problems that must be overcome.
The problems begin with the rigid bifurcation of definition and justification on which proportionality analysis is premised. Rights must be defined before justification for limits on them can be assessed, but no matter how broadly a particular right is defined the real protection it affords depends on how easy or difficult it is to justify the establishment of limits on the right. The importance of the justificatory inquiry establishes an incentive for courts to minimize or even avoid difficult questions of constitutional interpretation. As the focus of judicial review shifts from interpretation to justification, the scope of rights expands and so too does the scope of judicial review, as more and more state action is found to establish limits on the rights the courts have expanded. But while proportionality analysis leads to an expansion of rights and broadens the scope of judicial review, it limits the bases on which limits on rights may be justified. It prescribes an ostensibly objective, evidence-based assessment that all but bars the state from defending rights limitations on moral bases. Proportionality proponents may be comfortable with this state of affairs but there is no reason the rest of us should. It is nothing to which we agreed – or would have agreed – in establishing a democratic constitutional order.
This is a review essay of Aharon Barak's contribution to the debate, Proportionality: Constitutional Rights and their Limitations (Cambridge Studies in Constitutional Law) (Cambridge University Press, 2012). I argue that Barak fails to resolve the most serious problems posed by proportionality analysis and downplays the significant expansion of judicial power proportionality analysis occasions.